Title
URGENCY ORDINANCE of the City of San Leandro City Council Amending Title 5, Chapter 5-1 of the San Leandro Municipal Code to Amend Encroachment Requirements Relating to Small Cell Wireless Telecommunications Facilities to Become Effective Immediately.
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WHEREAS, this Ordinance is adopted as an urgency ordinance pursuant to California Government Code Section 36937(b). The facts constituting the urgency are as follows:
(1) The purpose of this Ordinance is to amend the City's Municipal Code to revise encroachment permit requirements to address installation of “small cell” wireless telecommunications facilities in the City's public right-of-way, in light of the Declaratory Ruling and Third Report and Order, “In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment” adopted September 26, 2018 by the Federal Communications Commission (“Order”) setting new limitations on local standards for, and accelerating the processing of, the siting of small cell wireless telecommunications facilities by local jurisdictions over such applications.
(2) Providers within the wireless telecommunications industry have expressed interest in submitting applications, or have already submitted applications, for the installation of small cell wireless telecommunications facilities in the City's public road rights-of-way. Other California cities have also received applications for small cells to be located within the public road right-of-way.
(3) The recent FCC Order interprets provisions of the Telecommunications Act of 1996 to restate the preemption that local governments cannot enact ordinances and regulations that “prohibit” or “effectively prohibit” the provision of telecommunications services. Consistent with this interpretation, the Order further provides that all local jurisdictions must comply with various restrictions on the exercise of local aesthetic, zoning, public works, and fee restrictions when dealing with wireless installation siting applications by the effective date of the Order, which is presumed to be January 14, 2019, barring judicial intervention. The Order further provides that all agencies should be capable of fully implementing its provisions within 180 days of its adoption, which was on September 26, 2018.
(4) Applications for siting of wireless facilities have grown dramatically among jurisdictions, including the cities of Santa Rosa, Hillsborough, Palo Alto, Piedmont, Rancho Palos Verdes, Monterey, Pacifica, Burlingame, South San Francisco, and various other cities and counties located within the Bay Area as well as the State since small cell facilities became the most preferred option of wireless providers for wireless telecommunications facilities. Applications for siting of small cell facilities generally are submitted in batches for multiple locations at the same or substantially the same time and thus must all be reviewed and evaluated at the same time.
(5) The Order provides that the trend toward small cell technology to deploy 5G and other next-generation wireless services requires greater densification and pace of build-out to enable widespread deployment as is sought by the wireless industry. The Order states that going forward as much as 80% of all new deployments will entail small cell technology.
(6) The Order provides that wireless providers variably estimate that the preference towards small cell facilities will likely result in ten to one hundred times the number of wireless facilities existing in the nation.
(7) The Order is intended to facilitate the spread, growth, and accumulation of small cell facilities over a short period of time in order to enable deployment of technology that the Order claims will enable increased competition in such diverse areas as healthcare, Internet of Things (IoT) applications, self-driving car technologies, and the creation of jobs, possibly increasing the U.S. economy by as much as $100 billion by speeding up the deployment of small cells by only one year. The Order reduces the “shot clock” period for cities to review, comment upon, consider, and make a final determination on small cells applications for as many as 90 days for new facilities and as many as 30 days for collocated and modified facilities.
(8) Small cell wireless facilities are primarily installed within public roadway rights-of-way and as such create significant and far-reaching local concerns with respect to traffic and pedestrian safety, aesthetics, protection and preservation of public property, and the health, safety, and welfare of the general public.
(9) Installation of small cell wireless telecommunications facilities within the public right-of-way can pose a threat to the public health, safety, and welfare, including disturbance to the roadway right-of-way through the installation and maintenance of wireless facilities; traffic and pedestrian safety hazards due to the unsafe location of wireless facilities; impacts to trees where proximity conflicts may require unnecessary trimming of branches or require removal of roots due to related undergrounding of equipment or connection lines; land use conflicts and incompatibilities including excessive height of poles and towers; creation of visual and aesthetic blights, and potential safety concerns arising from excessive size, heights, noise, or lack of camouflaging of wireless facilities including the associated pedestals, meters, equipment, and power generators; and the creation of unnecessary visual and aesthetic blight by failing to utilize alternative technologies or capitalizing on collocation opportunities, which may negatively impact the unique quality and character of the City.
(10) The City currently regulates wireless telecommunications facilities in the public right-of-way through disparate ordinances within its Municipal Code and Zoning Code, which do not focus specifically on small cell wireless telecommunications facilities. The City also currently requires all construction, erection, and other encroachments in the public right-of-way to obtain an encroachment permit, but the existing standards have not been updated to reflect the development of current small cell wireless telecommunications technologies, which are now the preferred method for providing wireless telecommunications services.
(11) The lack of encroachment and deployment regulations that are specific to the siting of small cell wireless telecommunications facilities in the public right-of-way combined with the Order’s regulations to hasten the spread and development of small cell facilities could jeopardize the health and safety of the public by allowing applications for small cell facilities to be submitted which are subject only to regulations from the Order. There would not be sufficient time for the City to develop regulations specific to the siting of small cell wireless telecommunications facilities in the public right-of-way before shot-clock timelines mandated approval of applications. Applications could be approved by law without local authority being properly, appropriately, and within the confines of federal and state laws exercised by the City. This would, in turn, result in wireless telecommunications facilities being constructed and operated without local controls for the life of the facility.
(12) The public right-of-way in the City is a uniquely valuable public resource, closely linked with the City's historical and unique community character, as well as its attractiveness for members of the business community and residents alike. The reasonably regulated and orderly deployment of wireless telecommunications facilities in the public right-of-way is desirable, and unregulated or disorderly deployment represents an ever-increasing and true threat to the health, safety, and welfare of the community.
(13) The regulation of wireless installations in the public right-of-way is necessary to protect and preserve the aesthetics in the community, as well as the values of properties within the City, and to ensure that all wireless telecommunications facilities are installed using the least intrusive means possible; and
WHEREAS, the City Council finds that in light of more recent developments in federal and state law with respect to the regulation of small cell and other wireless telecommunications facilities, there is a need for the City to update its current encroachment regulations to include specific permitting, location authorizations, and standards of work related to the deployment for small cell wireless facilities; and
WHEREAS, the City Council also finds that the lack of specifically-designed standards and regulations in the Municipal Code for wireless facilities located in the public right-of-way, the increasing requests for information about the City's regulation of wireless telecommunications facilities, the inability to adopt a temporary moratorium, and the potential liabilities and negative consequences for noncompliance with state and federal regulations (including, without limitation, automatic approvals) present current and immediate threats to the public health, safety, and welfare. The City Council further finds and declares that the immediate implementation of this Ordinance is necessary to preserve and protect public health, safety and welfare; and
WHEREAS, the City Council recognizes its responsibilities under the Federal Telecommunications Act of 1996, and state law, and believes that it is acting consistent with the current state of the law in ensuring that irreversible development activity does not occur that would harm the public health, safety, or welfare. The City does not intend that this Ordinance prohibit or have the effect of prohibiting the provision of telecommunications service; rather, it includes appropriate regulations to ensure that the installation and encroachment of wireless telecommunications facilities in the public rights-of-way are conducted in such a manner as to lawfully balance the legal rights of applicants under the Federal Telecommunications Act and the California Public Utilities Code while, at the same time, protect to the full extent feasible against the safety and land use concerns described herein; and
WHEREAS, adoption of this Ordinance is consistent with the City's General Plan. The City's General Plan provides goals, policies, and implementation measures to preserve high-quality design, scale, unique and historical character, aesthetics, scenic vistas, natural settings and resources, and environmental characteristics while also maintaining a strong, vibrant, and healthy economy for its local businesses, and assuring the health and safety of the predominantly residential character of the community. Adoption of this Ordinance will provide uniform and specific regulations and standards for wireless telecommunications facilities in furtherance of these goals and objectives while reducing the potentially negative impacts; and
WHEREAS, pursuant to Section 15001 of the California Environmental Quality Act (CEQA) Guidelines, this ordinance is exempt from CEQA based on the following:
(1) This Ordinance is not a project within the meaning of Section 15378 of the State CEQA Guidelines because it has no potential for resulting in physical changes in the environment, directly or ultimately.
(2) This Ordinance is categorically exempt from CEQA under Section 15308 of the CEQA Guidelines as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the evaluation and adoption of contemplated local legislation, regulation, and policies.
(3) This Ordinance is not subject to CEQA under the general rule in CEQA Guidelines Section 15061(b)(3) that CEQA applies only to projects which have the potential for causing a significant effect on the environment. For the reasons set forth in paragraphs (1) and (2), above, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment; and
WHEREAS, based on the foregoing, the City Council finds and determines that the immediate preservation of the public health, safety, and welfare requires that this Ordinance be enacted as an urgency ordinance pursuant to Government Code Section 36937(b), and take effect immediately upon adoption. Therefore, this Ordinance is necessary for the immediate preservation of the public peace, health, safety, and welfare and its urgency is hereby declared.
NOW, THEREFORE, the City Council of the City of San Leandro does ORDAIN as follows:
SECTION 1. Recitals Made Findings. The above recitals are hereby declared to be true and correct and findings of the City Council of the City of San Leandro.
SECTION 2. AMENDMENT OF CODE. ARTICLES 1, 2, and 3 of Chapter 5-1, “Encroachments”, of Title 5 of the San Leandro Municipal Code are hereby amended as follows (with text in strikeout indicating deletion and double underline indicating addition). Sections and subsections that are not amended by this Ordinance are not included below, and shall remain in full force and effect:
Chapter 5-1 Encroachments
Article 1. General Provisions
Article 2. Permit Requirements
Article 3. Performance Of Work
Article 4. Sidewalks, Driveways, Curbs
Article 5. Moving Buildings, Oversized Vehicles Or Objects
Article 6. Miscellaneous
Article 1: General Provisions
5-1-100 DEFINITIONS.
Unless the context otherwise requires, the definitions contained in this section shall govern the construction of this Chapter.
(a) ENCROACH, ENCROACHMENT. “Encroach” or “encroachment’ includes going upon, over, under, or using any street in such a manner as to prevent, obstruct, or interfere with its normal use, including, but not limited to, the performance thereon of any of the following acts:
(1) Excavating, filling or disturbing the street;
(2) Erecting or maintaining any post, pole, fence, guard rail, wall, loading platform, or other structure on, over or under the street;
(3) Planting any tree, shrub or other growing thing within the street;
(4) Placing or leaving on the street any rubbish, brush, earth or other material of any nature whatever;
(5) Constructing, placing, or maintaining on, over, under, or within the street any pathway, sidewalk, driveway, or other surfacing, any culvert or other surface drainage or sub-surface drainage facility, any pipe, conduit, wire, or cable;
(6) Traveling on the street by any vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit;
(7) Moving any building in, into, through or from the City of San Leandro on, over or through any street;
(8) Lighting or building a fire;
(9) Constructing, placing, planting or maintaining any structure, embankment, excavation, tree or other object adjacent to the street which causes or will cause an encroachment;
(10) Placing or causing to be placed any material, machinery or apparatus on the street for building, paving or other purposes for over twenty-four (24) hours; or
(11) Placing street furniture, including bicycle racks, within the public right-of-way;
(12) Deploying, installing, or locating of Small Cell Wireless Facilities upon existing or new structures within the public roadway right-of-way;
(13) Using, accessing, or connecting to conduits, circuits, panels, or related infrastructure in connection with the deployment, installation, or location of Small Cell Wireless Facilities in the public roadway right-of-way.
(b) PERMITTEE. “Permittee” means any person that proposes to do work or encroach upon a street as herein defined and has been issued a permit for said encroachment by the Public Works Director.
(c) PERSON. “Person” shall mean any individual, firm, partnership, association or corporation, including any public agency or utility, or any agent or representative thereof and includes successors in interest.
(d) PUBLIC WORKS DIRECTOR. “Public Works Director” shall mean the San Leandro Public Works Director, Engineering and Transportation Director or designee.
(e) STREET. “Street” shall mean the full width of the right-of-way of any street, as defined in the California Vehicle Code used by the general public, whether or not such street has been accepted as and declared to be part of the City system of streets, including streets forming a part of the State Highway System. “Street” also includes easements where the City is the grantee of the easement and property owned by the City of San Leandro, the Redevelopment Agency of the City of San Leandro or the Parking Authority of the City of San Leandro.
(f) SMALL CELL WIRELESS FACILITIES. “Small Cell Wireless Facilities” shall mean a wireless telecommunications facility that meets each of the following conditions:
(1) The structure on which antenna facilities are mounted:
(a) Is 50 feet or less in height, or
(b) Is no more than 10 percent taller than other adjacent structures, or
(c) Is not extended to a height of more than 10 percent above its preexisting height as a result of the collocation of new antenna facilities; and
(2) Each antenna (excluding associated antenna equipment as defined by 47 C.F.R. §1.1320(d)) is no more than three cubic feet in volume; and
(3) All other wireless equipment associated with the facility are cumulatively no more than 28 cubic feet in volume; and
(4) The facility does not require antenna structure registration under 47 C.F.R. Chapter 1, Subchapter A, Part 17.
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. §1.1307(b).
. . .
Article 2: Permit Requirements
5-1-200 PERMIT REQUIRED.
No person shall encroach or cause to be made any encroachment of any nature whatever within, upon, over or under the limits of any street in the City, or make or cause to be made any alteration of any nature within, upon, over, or under such street; or construct, put upon, maintain or leave thereon, or cause to be constructed, put upon, maintained or left thereon, any obstruction or impediment of any nature whatever; or remove, cut or trim trees thereon; or set a fire thereon; or place on, over or under such street any pipe line, conduit or other fixture; or move over or cause to be moved over the surface of any street or over any bridge, viaduct, or other structure maintained by the City any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the street; or place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment in such a way as to endanger the normal usage of the street without having first obtained a permit as required in this Chapter. No permit shall be granted pursuant to this Chapter for any Small Cell Wireless Facilities encroachment of any nature upon any existing or new structure in the public roadway right-of-way unless a permit Applicant provides evidence satisfactory to the City demonstrating the property owner’s consent or other form of proof demonstrating Applicant’s legal right to use the property upon which Applicant proposes to attach the Small Cell Wireless Facility. The Applicant must demonstrate evidence satisfactory to City for each and every proposed Small Cell Wireless Facility.
. . .
Article 3: Performance of Work
5-1-300 STANDARDS AND SPECIFICATIONS.
The Public Works Director shall from time to time establish such standards and specifications as he or she deems necessary for the proper construction, use and maintenance of encroachments and for the safety, protection and convenience of the public, which standards and specifications shall be applicable to all permittees. Any work or use done under all permits shall conform to the City’s standard plans and specifications, unless otherwise required by the Public Works Director. All work or use pertaining to the deployment, installation or location of Small Cell Wireless Facilities shall conform with applicable general guidelines and specific design criteria set forth in this Code, and administrative guidelines established by the City and in effect, as may be amended from time-to-time.If inadequate provision is made for the safety, protection and convenience of the public by the permittee, the Public Works Director may take such action as he or she deems necessary for the protection of the public and shall charge the permittee therefor.
SECTION 3. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this ordinance are severable. The City Council of the City of San Leandro hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
SECTION 4. Effective Date and Publication. Following adoption by at least a four-fifths vote of the City Council, this Ordinance shall be effective immediately upon adoption pursuant to San Leandro Municipal Code Section 1-1-345. The City Clerk is directed to publish the title once and post a complete copy thereof on the City Council Chamber bulletin board for five (5) days following adoption.
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